Orlando Aftermath: Red Flags, Yet Legally Able to Buy a Gun

The gunman in a shooting rampage at a Florida nightclub, identified as Omar Mateen, would seem, in retrospect, to have been the kind of person who should not have been able to buy a gun.

His former wife described Mr. Mateen as mentally unstable and abusive. A co-worker at the security company where he worked recalled him talking “about killing people all the time.” And the Federal Bureau of Investigation investigated him for possible ties to terrorism.

Yet, just as was the case with a long line of other mass shootings, nothing prevented the Orlando gunman from legally buying the weapons he used.

The explanation, as confounding as it may be for those who favor tougher gun restrictions, has its roots in a civic value that crosses the political divide: the right to due process.

The pattern is, by now, numbingly familiar.

Jared Loughner, who in 2011 shot Representative Gabrielle Giffords in the head and killed six others in Tucson, had exhibited alarming signs of mental illness, yet legally bought the Glock handgun used in the shooting just a few weeks earlier.

A month before Aaron Alexis killed a dozen people in 2013 at the Washington Navy Yard, the police in Rhode Island visited him after he called them to complain that he was hearing voices and that people were following him and harassing him with a microwave machine. Nevertheless, shortly after, he was able to legally buy the shotgun he used in the shooting.

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Edward Henson — the owner of St. Lucie Shooting Center, where Omar Mateen bought two weapons — said he did not know the Orlando shooter personally.Published OnJune 13, 2016

The phenomenon occurs again and again on a more humdrum, daily basis, involving far less spectacular shootings.

In 2010, in Oklahoma, Barbara Diane Dye was shot and killed by her husband in a bank parking lot. Two weeks earlier, she had filed an emergency order of protection against him, explaining that her husband had repeatedly threatened to kill her and that she feared he would turn violent when he received divorce papers. As they waited for a court hearing needed for a full protection order, Ms. Dye and her family begged the local police to take away his guns.

The issue with these cases and countless others is the way federal gun prohibitions have been drawn up, seeking to balance what the Supreme Court decreed in 2008 was a constitutional right to bear arms against the potential threat to public safety.

Most of the federal criteria that bar people from buying or possessing guns under federal law require some sort of legal adjudication: a felony conviction, for instance; an involuntary commitment to a mental institution, a process that typically requires a judge’s decree; a full protection order that includes the opportunity for a hearing.

It is a relatively high bar, given the range of behaviors that might set off alarms about someone having a gun.

While Mr. Mateen might have exhibited worrisome red flags, his behavior had never risen to the level that involved a full-fledged court process, or some other official proceeding, that would have blocked him.

The same applies to Mr. Loughner and Mr. Alexis, as clearly mentally unstable as they both were in retrospect. In Ms. Dye’s case in Oklahoma, her husband had not yet been given the opportunity to contest the allegations against him in a court hearing on the order of protection, which could have led to his being barred him from having guns.

The issue of due process, in fact, is at the heart of why gun rights advocates have resisted so strenuously a proposal to bar people on federal terrorism watch lists, or who have otherwise been suspected by the authorities of ties to terrorist groups, from buying guns. (Mr. Mateen was on a watch list from 2013 to mid-2014, James B. Comey, the F.B.I. director, said, but not earlier this month when he bought the guns used in the shooting.)

People on the watch lists, which can include tens of thousands of names, have no opportunity to contest their inclusion in a court of law, gun rights proponents point out. And taking away a constitutionally protected right, they argue, should carry a much greater legal bar.

The measure was defeated six months ago by Republicans in Congress, but Senate Democrats, including Dianne Feinstein of California and Bill Nelson of Florida, said on Monday that they would renew their push for a vote on the legislation.

“I hope every member of the House and Senate had time for quiet reflection yesterday to ask what we could have done to prevent this tragedy,” Senator Harry Reid of Nevada, the Democratic leader, said on Monday. “I’m so sorry. I’m heartsick, I’m basically sick by our inaction. It’s shameful the United States Senate has done nothing — nothing — to stop these mass shootings.”

Just one Republican, Senator Mark S. Kirk of Illinois, voted in favor of the proposal in December, but Democrats said that they believed that Republicans would come under new pressure.

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Omar Mateen

It is a sign of where the gun debate is in this country at the moment that even the Manchin-Toomey gun bill of 2013, the most ambitious proposal for tightening federal gun laws in recent years, would have been powerless to block Mr. Mateen’s purchase of a gun.

That is because the measure, proposed after the school shooting in Newtown, Conn., was focused on expanding existing federal background checks on guns to a greater array of gun transactions, particularly those made through “private sales” at gun shows or online.

Only in a handful states — New York and California are among those that stand out — have lawmakers sought to tighten the legal threshold to include red flags that extend substantially beyond the federal criteria.

New York passed a law in 2013 after Newtown that compelled mental health professionals to report any patient “likely to engage in conduct that would result in serious harm to self or others,” a process that could lead to the person being prohibited from buying and possessing firearms.

But, by late 2014, the list had swelled to some 34,500 names, raising concerns even among some mental health professionals that some in the database were not truly dangerous.

California, for its part, introduced this year something lawmakers called a “gun violence restraining order,” in which family members or law enforcement officials can petition a judge on an emergency basis to order people to surrender their firearms, pending a full hearing, because the individuals pose a danger to themselves or others. The weapons could then later be returned, if a person successfully contests the removal in court.

Gun control proponents, seeking to expand the restraining orders to other states, hope the hearing process for the orders give them a convincing way to counter the due process arguments from opponents. An alliance of gun control supporters are now trying to secure enough signatures to get a similar firearm restraining order on the ballot in November in Washington State.

Ultimately, it is a question that promises to resurface, given the protracted nature of the gun debate in the United States: Where should the line be drawn?

David Herszenhorn and Eric Lichtblau contributed reporting.

A version of this article appears in print on , on Page A11 of the New York edition with the headline: Another Killer Who Could Buy His Guns Legally, Despite the Red Flags. Order Reprints | Today’s Paper | Subscribe